1726779 (Refugee)

[2021] AATA 5253

1726779 (Refugee) [2021] AATA 5253 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726779

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:K. Chapman

DATE:9 December 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 09 December 2021 at 2:21pm

CATCHWORDS

REFUGEE – protection visa – Papua New Guinea – particular social group – single mothers without family protection in Papua New Guinea – female minors without family protection in Papua New Guinea – separated woman with a child – familial fear of witchcraft – threat of inter-tribal violence – perceived association with witchcraft – fear of gender based violence – victim of sexual assault – delay in claiming protection ­–state protection not available – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 October 2017, to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicants, who claim to be citizens of Papua New Guinea, applied for the visas on 29 January 2016. The first named applicant has made claims for protection on the basis that she is a separated woman with a child, who lacks family support and is at risk of gender based violence. Furthermore, the first named applicant claims that her risk of suffering such violence is increased due to the fears of witchcraft held by her family and also inter-tribal violence in her home village in the Eastern Highlands of Papua New Guinea. The applicant also makes these claims on behalf of the second named applicant, who is her minor daughter. The delegate accepted the credibility of the claims of the first named applicant regarding past sexual violence she suffered. However, the delegate found that the applicant could return to her home village and obtain the protection of her family under the Wantok system, not accepting the claims raised concerning witchcraft or inter-tribal violence.

3. On 1 November 2017, the applicants applied for review of the decision to refuse the visas, providing a copy of that decision to the Tribunal. The applicant submitted documentary material to the Tribunal including, inter alia, written submissions, Statutory Declarations, news articles, Police reports, photographs and identity documents. The Tribunal notes that the written submissions of pro bono Counsel were comprehensive, orderly and of great assistance.

4. The first named applicant (hereafter ‘the applicant’) appeared in person before the Tribunal on 15 November 2021 to give evidence and present arguments. She was represented at the hearing by pro bono Counsel. The Tribunal notes the applicant provided most compelling evidence at hearing that is consistent with her written claims. In particular, the applicant provided direct and detailed answers to the questions of the Tribunal, buttressing the veracity of the submitted documentary material. The Tribunal, accordingly, has assessed the applicant as a credible witness and affords her evidence at hearing high weight. For completeness, the Tribunal notes the delegate also recorded in the primary decision that the applicant generally presented as a credible witness. 

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

12. According to the protection visa application, the applicants claim to be citizens of Papua New Guinea. Given the personal details provided in that visa application, the Tribunal is satisfied the applicants are indeed Papua New Guinean nationals. Papua New Guinea is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

13. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

14. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to their receiving country of Papua New Guinea, there is a real risk they will suffer significant harm.

    Documentary evidence before the Tribunal

15. The Tribunal has its own file, and the Department file, relating to the applicants before it. Information including, but not limited to, the following is contained in those files:

    a.the applicants’ protection visa application forms lodged on 29 January 2016;

    b.the applicants’ identity documents, including their passports, birth certificates and passport photographs;

    c.Statutory Declaration of the first named applicant dated 10 August 2017;

    d.letter from [name deleted], Magistrate Chairman of [Village Court 1] dated 25 August 2017;

    e.reference letter from [name deleted], Director of [a named organisation]. dated 5 August 2021;

    f.statement from [name deleted], Inspector and Police Station Commander of [a] Police Station dated 6 August 2021;

    g.statement from [name deleted], Chairman of [Village Court 2] dated 6 August 2021;

    h.psychological assessment reports by [name deleted], Clinical Psychologist, with respect to the second named applicant dated 19 November 2017 and 6 August 2021;

    i.the Departmental delegate’s protection visa refusal decision record dated 20 October 2017;

    j.the application for review form submitted on 1 November 2017;

    k.Statutory Declaration of the first named applicant dated 8 November 2021, enclosing media material, photographs and supporting correspondence;

    l.outline of submissions of the applicants’ representative dated 8 November 2021; and

    m.Departmental administrative and movement records.

    Claims for protection

16. The applicant has made claims for protection, on behalf of herself and the second named applicant, which may be summarised as follows (noting that information additional to the initial specified claims was raised during the review):

    a.the applicant is part of the particular social group, ‘single mothers without family protection in Papua New Guinea’, and will be at risk of suffering gender based violence if she returns to her country of nationality (noting also she has previously suffered sexual assault);

    b.the family of the applicant fear witchcraft and perceive they will be adversely affected by it if in proximity to the applicant, due to past tragedies that have befallen the applicant’s father and two sisters;

    c.the applicant is at increased risk of harm due to inter-tribal violence between her clan, [Clan 1], and [Clan 2] in the vicinity of her home village of [Village 1] in the Eastern Highlands;

    d.the second named applicant is part of the particular social group, ‘female minors without family protection in Papua New Guinea’, and will be at risk of suffering gender based violence if she returns to her country of nationality (noting also she has previously suffered sexual assault);

    e.the second named applicant is perceived by her family to be afflicted by witchcraft as with her mother; and

    f.the second named applicant is also at increased risk of harm due to inter-tribal violence between her clan, [Clan 1], and [Clan 2] in the vicinity of her mother’s home village of [Village 1] in the Eastern Highlands.

    Decision of the Departmental delegate

17. The Departmental delegate’s decision may be summarised as follows. He accepted that the applicant provided credible information regarding having suffered gender based violence in Papua New Guinea. However, the delegate determined that there was not a real chance of serious or significant harm coming to her, as a result of her ability to access family support through the Wantok system in her home village in the Eastern Highlands of Papua New Guinea.

18. The Tribunal observes this to be a matter where the applicant submitted more comprehensive information to it than was available to the primary decision maker, and in addition one where certain significant circumstances are present at the time of this decision which were not so when the primary decision was made.

    Evidence at the review hearing

19. The applicant provided her evidence at hearing in a detailed, consistent and direct fashion. She impressed the Tribunal as an honest witness. Her evidence may be summarised as follows. She confirmed that she understood her claims for protection and they are truthful. The applicant outlined that whilst in [high school], in the Eastern Highlands, she was required to commute from her home village of [Village 1] by walking for a long distance through remote terrain, as she could not afford to take the bus. The applicant was sexually assaulted at knifepoint during her commute by an older pupil. At the age of [age] years, she gave birth to her son, [Mr A], who was conceived from that assault. The applicant ceased her education at this point.

20. Whilst her son was very young, the applicant left him in the care of her parents in her home village of [Village 1] and went to [City 1] in search of employment. She stayed with an uncle in [City 1] and worked in a retail shop. When residing in [City 1] she commenced a relationship with a boyfriend called [Mr B] and became pregnant. Her boyfriend left her and the applicant returned to her village. In 2003, the applicant gave birth to her daughter [Miss C] in the village. At that time the applicant resided with her parents and her two children in the village. She received no support from her former boyfriend.

21. Shortly after the birth of [Miss C], the applicant’s father died suddenly of illness. Many people in the village, and other members of her family, suspected witchcraft was involved in his death. Additionally, the applicant’s brother [named] hit her because he perceived her to side with his partner in an argument. Further, [her brother] insisted that family land was to be used by him and his brothers and not the applicant because she is female.

22. When the applicant’s second child, [Miss C], was 7 months old, she departed her village for the town of [Town 1], [to] search for employment. The applicant’s children were cared for by her mother in the village. The applicant found employment [in] [Town 1]. In that town she also met [Mr D], an older man who repeatedly asked her to marry him. In due course, the applicant agreed to marry [Mr D]. Whilst married to [Mr D], the applicant and [Miss C] lived with him in [Town 1], [Town 2] and then [Town 3]. In [year], the applicant gave birth to her third child, [name deleted] (the second named applicant), in [Town 3]. Subsequently, the applicant moved to Port Moresby with [Mr D] and all three of her children. They remained living together in Port Moresby for approximately 2 years.

23. Whilst married to [Mr D], the applicant experienced intermittent family violence from him. One day, [Mr D] departed Port Moresby for [Country 1], his country of nationality. The applicant outlined that he was supposed to travel to [Country 1] for a brief visit, then return to Port Moresby. However, [Mr D] never returned to Papua New Guinea and he ceased contact with the applicant. This left the applicant unable to pay her rent and meet the costs of living. Ultimately, the applicant was forced out of her accommodation. A work mate of [Mr D], named [Mr E], felt sorry for the applicant and allowed her and the three children to stay with his family for a time in [Area 1] of Port Moresby. However, with the effluxion of time, [Mr E] and his wife tired of the applicant’s presence and they started to mistreat her. The applicant was forced to make [food] to sell [to] survive.

24. The applicant explained that the location of her accommodation in [Area 1] was precarious. She explained that [Area 1] is a dangerous area of Port Moresby and there were many drunk men who frequented the area. Once [Mr E] and his wife stopped helping the applicant, her situation became even more dire. When her son [Mr A] was around [age] years of age, he departed Port Moresby and returned to the village in the Eastern Highlands. He reported back that the family members in the village expressed concerns they may be adversely affected by witchcraft associated with the applicant. This is because the applicant’s father and one sister died unexpectedly of illness. Furthermore, another sister of the applicant met an untimely death, when as a pedestrian she was pushed in front of a moving vehicle. In the view of some family members, such tragedy must be associated with witchcraft and they do not want it to pass from the applicant onto them. [Mr A] also expressed his concern for the safety of the applicant should she return to their family village in the Eastern Highlands, due to the perceived association with witchcraft.

25. Whilst the applicant and her two daughters remained living in [Area 1] in Port Moresby, they were subject to regular threats of sexual violence from drunken men. On one occasion, a drunken man broke into their accommodation and threatened the applicant before departing. On another occasion the second named applicant, at the age of [age] years, was taken off the street by a man in [Area 1] and molested before the applicant could rescue her. The applicant reported this matter to the Police. Their response was to tell the applicant to find this man and bring him to the Police station. No further assistance was rendered by the Police. The applicant described living in a constant state of fear for herself and her daughters regarding threats of sexual violence. This was further compounded by poverty and insecure accommodation.

26. In due course, [Mr E] ordered the applicant and her two daughters out of the accommodation he controlled in [Area 1]. The applicant explained that she could not return to her village in the Eastern Highlands as her family was too poor to assist her, they feared she was associated with witchcraft and there was tribal fighting ongoing. Regarding this latter theme, the applicant outlined that her [Clan 1] clan and [Clan 2] were fighting over land in the vicinity of her home village of [Village 1] in the Eastern Highlands, a topic to which the Tribunal shall return.

27. Following her eviction from [Area 1], the applicant found refuge with a lady from her Church in Port Moresby.  In due course, the applicant met a lady in the market who agreed to assist her to travel to Australia. The applicant could only afford to bring one child with her to Australia, so she planned to take [the second named applicant]. In July 2015, the applicant travelled to Australia with [the second named applicant], whilst [Miss C] stayed behind with the lady from Church. Once in Australia, the applicant and [the second named applicant] stayed with the lady from the market and her husband. According to the applicant, she knew she could only remain in Australia for 3 months on her Visitor visa and therefore she returned to Port Moresby in order to keep that visa valid.

28. Upon return to Port Moresby, the applicant again stayed with the lady from Church and [Miss C]. However, it became apparent that this residential situation could not continue in the long term. Through connections at [Miss C]’s school, the applicant located the sister of [Mr B], who is the father of [Miss C]. Being the aunt of [Miss C], this lady agreed to accommodate her in Port Moresby. By now the applicant and [the second named applicant] were no longer able to remain living with the lady from Church in Port Moresby, as this was only a temporary arrangement. The applicant could not live with [Miss C]’s aunt, as [Mr B] would occasionally visit and he has not acknowledged [Miss C] as his daughter. Additionally, [Mr B]’s wife would not accept the applicant being around. Furthermore, the applicant could not return to her village in the Eastern Highlands for reasons previously expressed. Given her lack of family support, the applicant made the decision to return to Australia with [the second named applicant].

1. In November 2015, the applicant and [the second named applicant] made their most recent entry into Australia. They stayed again with the lady she had met in the market, however her husband grew tired of their presence in the house due to financial constraints. Ultimately, the applicant made contact with the Red Cross and they assisted her, including by linking her with legal support. Thereafter, the applicant applied for protection.

2. The Tribunal canvassed with the applicant why she did not seek protection on her first visit to Australia? She explained that she is uneducated and did not know anything about protection visas on that first visit. Whilst happy to be away from Papua New Guinea, the applicant was concerned to preserve the integrity of her Visitor visa so she returned to Port Moresby. According to the applicant, she only came to learn of protection visas in Australia once she sought assistance from the Red Cross.

3. The Tribunal canvassed with the applicant whether she could seek assistance from the Police in Papua New Guinea if she returned there. She indicated they do not assist women and girls to be protected from dangerous men. The applicant also explained that many men carry guns in Papua New Guinea and girls are routinely kidnapped and harmed by them. The Tribunal also canvassed with the applicant whether she could move to a safe area of Papua New Guinea if she returned to that country. The applicant maintained that as a single mother she is in fear of sexual violence from men. She expressed particular fear for her daughters. The applicant also outlined that without male family support she would be particularly fearful and in any event she had nowhere to go. Additionally, the applicant informed the Tribunal that fighting over land between the [Clan 1] and [Clan 2] clans in the Eastern Highlands had intensified, with a hand grenade being thrown by her clan on one recent occasion. She cited that [Mr A] had also been drawn into the fighting and it was not safe for her to return to her village.

4. The applicant also advised she learned that [Mr D], the father of [the second named applicant], is now deceased (the submitted Death Certificate from [Country 1] confirms his passing in September 2017). Accordingly, [the second named applicant] now lacks any father to protect her. Prior to the conclusion of the review hearing, the applicant confirmed that she had provided all of her evidence to the Tribunal. Pro bono Counsel was invited to make submissions and she did so in a manner consistent with her written submissions. Of note, the Tribunal’s attention was drawn to a submitted contemporary media article that refers to the intensity of the fighting between the [Clan 1] and [Clan 2] clans in the Eastern Highlands.[1] In summary, it is submitted on behalf of the applicant that she is at risk of suffering gender based violence as a single mother, overlayed with additional risk factors arising from the imputation of being associated with witchcraft and the inter-tribal violence taking place in her home village. It is also submitted that such risk factors are pertinent to the second named applicant, who is a female minor. As previously indicated, the Tribunal found the applicant to be a most credible witness.

   Analysis  

   [1] [source deleted].

5. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.

6. The Tribunal accepts the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

7. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

8. The Tribunal has very carefully considered the applicants’ claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is satisfied that both of the applicants have a well-founded fear of persecution in Papua New Guinea. Given the high degree of credibility of the applicant, the Tribunal accepts that both applicants have no family support to avail themselves of in their country of nationality. This places them at enhanced risk of suffering gender based violence, as they lack male protection. Furthermore, the Tribunal also accepts that the applicant’s family perceives she and her daughters are associated with witchcraft, to the extent that they do not want its affects to pass onto them in their presence. Additionally, the Tribunal also accepts that there is a violent land dispute taking place in the vicinity of the applicant’s home village of [Village 1] (near [Town 1]), as corroborated by the submitted media reports and supporting statements.

9. The relevant DFAT country information[2], to which the Tribunal must have regard, in combination with open source country information, paints a bleak picture for women without male protection in Papua New Guinea. This is particularly so when overlayed with situations of tribal violence and allegations of witchcraft, as will now be outlined.

   [2] ‘DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017.

10. Relevant information from the current DFAT report relating to tribal violence indicates:

    2.36    Tensions between and within PNG’s hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in widespread destruction of property, disruption of normal services, death and serious injury.

    2.37    Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country’s population. Conflicts between various groups are complicated by grievances over access to royalties, and effects, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the Highlands have carried on tribal violence in other parts of the country, including in Port Moresby.

    2.38    Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs…

    2.39 The Inter-group Fighting Act (1977) prohibits inter-tribal fighting. Section 11(2) of the Act provides for a punishment of between three and six years’ imprisonment where a person has taken part in inter-tribal fighting that has resulted in death. Section 11(3) of the Act provides for a punishment of between 20 to 30 years’ imprisonment if a Court determines that an individual is a principal offender or a leader of a fight that result in death. While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they may be subjected to ‘payback’ violence if they testify.

11. Relevant information from the latest DFAT report on Papua New Guinea concerning State protection indicates:

    Police

    5.4 The Royal Papua New Guinea Constabulary (RPNGC) is responsible for maintaining internal security in all regions of the country. The Police Commissioner reports to the Minister for Police. Under the terms of the Bougainville Peace Agreement, the Autonomous Region of Bougainville (ARB) maintains its own police force, the Bougainville Police Service. While the ARB Minister for Police has authority to enforce local law, the RPNGC retains the authority to ensure that national law is enforced. In some areas of PNG, including Bougainville, supplementary policing is provided through an initiative known as the Community Auxiliary Police. The Police Act (1998) affords this force the same powers as the regular police, although the exercise of their powers is limited to the geographical area in which they are appointed.

    5.5 The PNG Community Perceptions Survey 2015 (see ‘Crime’) highlighted that the RPNGC was perceived very poorly in the PNG community. 70 per cent of those surveyed reported that police did not treat people fairly; 67 per cent reported that police did not treat people with respect; and 66 per cent reported that police were not honest. The survey also noted that focus groups raised gender as an issue, with women surveyed reporting disrespect, lack of action on complaints, and sexual aggression and violence (including rape by police and the exchange of sexual favours for better treatment). However, the report did highlight some evidence of positive improvements in Port Moresby and Lae, including greater visibility in these areas and an increase in people’s willingness to seek help from them.

12. Open source country information indicates that women in Papua New Guinea may be subject to official discrimination. Women in PNG face severe inequalities in all aspects of social, cultural, economic, and political life; gender discrimination exists ‘at all levels’.[3] Women in Papua New Guinea face very high levels of societal violence. Sexual harassment of women is widespread and severe.[4] A 2019 Women, Peace, and Security index of women’s ‘wellbeing’ worldwide scored PNG 0.658 (1 being ideal) and ranked it 117 (of 167 countries).[5]

    [3] 'Country Reports on Human Rights Practices for 2020 - Papua New Guinea', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.15 Section 6.

    [4] 'Country Reports on Human Rights Practices for 2020 - Papua New Guinea', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.15 Section 6.

    [5] ‘Women Peace and Security Index 2019/20', Georgetown Institute for Women, Peace and Security, pp.vi, 1, 27, 28, 61 & B & C, 25 October 2019.

13. The PNG government in 2016 described gender-based violence as endemic[6], stating that 2 in 3 women were said to be affected by it.[7] A 2013 study predicted that 70 percent of women would experience rape and assault in their lifetime.[8] However, a 2014 report stated that data on violence in PNG was so ‘patchy and scarce’ that it was not possible to state whether gender-based violence had increased or decreased.[9] In the largest survey of gender-based violence (GBV) (6176 incidents reported from May 2013 to November 2016 to seven non-governmental organisations (NGOs) in five provinces), 65.6 per cent of perpetrators were the intimate partner of the complainant; 78 per cent of complainants were female. The surveyed NGOs had most frequently provided counselling and mediation, occasionally refuge accommodation and repatriation; they referred to courts usually only cases unresolvable within the family or involving criminal physical and sexual violence. 40.1 per cent of 6063 of the incidents involved physical or sexual violence.[10]

    [6] ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Papua New Guinea’, [Advance Version], Government of Papua New Guinea, [United Nations General Assembly.] Human Rights Council, 3 May 2016, p.18.

    [7] ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), p. 9.

    [8] ‘DFAT Country Information Report Papua New Guinea’, Department of Foreign Affairs and Trade, 10 February 2017, p.17; ‘Return to abuser: Gaps in servicers and a failure to protect survivors of family and sexual violence in Papua New Guinea’, Médecins Sans Frontières (MSF), March 2016, p.7.

    [9] 'Violence against women in PNG: How men are getting away with murder', Chandler J, Lowy Institute for International Policy, August 2014 [document created 28/8/2014].

    [10] ‘Understanding Gender-Based and Sorcery Related Violence in Papua New Guinea. An Analysis Of Data Collected From Oxfam Partners 2013-2016’, Thomas V, Kauli J & Rawstorne P (Queensland University of Technology for Oxfam, undated [document created 19/11/2017]), pp.10, 8, 12, 14, 16, 15, 25 & 18; ‘Bloodlust hysteria' - sorcery accusations a brutal death sentence in Papua New Guinea’, Helen Davidson, The Guardian, 4 January 2018.

14. The Papua New Guinea Demographic and Health Survey 2016-2018 found that, of 4873 women aged 15 to 49 surveyed, 56 per cent had experienced physical violence since the age of 15, and 28 per cent sexual violence. Physical violence was experienced by more divorced, separated or widowed women (experienced by 70 per cent) and currently married women (63 per cent) than never-married women (30 per cent). 78 per cent of surveyed ever-married women who experienced physical violence and 77 per cent who experienced sexual violence, reported their current husband as its perpetrator. 66 per cent of never-married women who experienced sexual violence reported current or former boyfriends, and 6 per cent strangers, as its perpetrator.[11] 647 cases of domestic violence were reported in Port Moresby in June 2020, according to the Police Minister.[12] Sexual violence has been committed by police, including against women in detention.[13]

    [11] ‘Papua New Guinea Demographic and Health Survey 2016-18’, National Statistical Office, Papua New Guinea, and The DHS Program, ICF, [26] November 2019, pp.289, 290, 291-292 including Figure 16.1, 301 at Table 16.3, 302 at Table 16.4, & 303 at Table 16.6, on The DCF Program, USAID website; 'PNG health survey shows 56% of women suffer violence at age 15', Pacific Media Centre, 5 July 2020.

    [12] ‘Papua New Guinea women demand end to domestic violence after death of 19-year-old mother Jenelyn Kennedy’, Whiting N & Harriman B, ABC News [Australian Broadcasting Corporation News], 4 July 2020; 'World Report 2021. Events of 2020', Human Rights Watch, [13 January] 2021, pp. 526-531 ‘Papua New Guinea’ at 526; ‘Submission to the Universal Periodic Review of Papua New Guinea’, Human Rights Watch, March 2021 [document created 1/04/2021], p.[2] paragraph 5.

    [13] ‘Country Reports on Human Rights Practices 2017. Papua New Guinea’, United States Department of State, 20 April 2018, p.2 section 1.c1; repeated annually to 'Country Reports on Human Rights Practices for 2020 - Papua New Guinea', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.14 section 6 (which refers to section 1.c which no longer includes such information); '[Bertelsmann Stiftung’s Transformation Index.] BTI 2018 Country Report. Papua New Guinea', Bertelsmann Stiftung, [document created 22 January] 2018, pp.26-27.

15. Only a small proportion of women in Papua New Guinea who experience societal violence seek help from the Police. The Papua New Guinea Demographic and Health Survey 2016-2018 found that 35 per cent of surveyed women who had experienced physical or sexual violence had sought help; most commonly seeking the help from their family (72 per cent had), and less commonly from their husband’s family (13 per cent), friends (11 per cent), neighbours (11 per cent), Police (10 per cent), social work organisations (3 per cent) and doctors/medical personnel (3 per cent). 15 percent of surveyed women who had experienced both physical and sexual violence sought help from the police.[14]

    [14] ‘Papua New Guinea Demographic and Health Survey 2016-18’, National Statistical Office, Papua New Guinea, and The DHS Program, ICF, [26] November 2019, pp.297 including Figure 16.4, 313 at Table 16.17, & 314 at Table 16.18, on The DCF Program, USAID website; 'PNG health survey shows 56% of women suffer violence at age 15', Pacific Media Centre, 5 July 2020.

16. The Tribunal regards the outlined country information as pointing strongly to the risk of gender based violence being faced by the applicants, should they return to Papua New Guinea without family support and male protection. For completeness, the Tribunal notes that it accepts the applicant’s claims that her family will not support her due to concerns relating to poverty, witchcraft and being embroiled in a violent tribal dispute over land rights. Therefore, the Tribunal is satisfied that both applicants have no accommodation to return to in Papua New Guinea at the present time.

17. The Tribunal has also carefully assessed the delay of the applicant in claiming protection. Given the low education level of the applicant, in combination with her particular circumstances, the Tribunal accepts that she was unaware of her ability to seek a protection visa on her first visit to Australia. Additionally, the Tribunal accepts that the applicant only became aware of her ability to seek protection on her second visit to Australia, after being informed by the Australian Red Cross. Of note, the Tribunal is particularly satisfied with the credibility of the applicant, which buttresses its view that her delay in claiming protection is attributable to genuine reasons. Therefore, the Tribunal is satisfied that the applicant’s delay in claiming protection does not detract from the veracity of her claims.

1. The Tribunal has had regard to s.5L of the Act which provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. Following careful consideration, the Tribunal finds that the applicant is a member of the particular social group ‘single mothers without family protection in Papua New Guinea’. Furthermore, the Tribunal finds that the second named applicant is a member of the particular social group ‘female minors without family protection in Papua New Guinea’.

2. In the view of the Tribunal, the applicants fear persecution on this basis, and their membership of their respective particular social group places them at increased risk of harm from abusive men in Papua New Guinea. The Tribunal notes in making this finding that it has duly considered s.5K of the Act and that no barrier is posed by that provision in determining the applicants to be a member, respectively, of the particular social groups outlined.

   Real chance of persecution for reason of membership of a particular social group

3. With regard to assessing whether the applicants face a well founded fear of persecution as persons in their respective particular social groups, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicants satisfy the aforementioned subjective requirement (with the applicant holding the subjective fear on behalf of the second named applicant, who is a minor).

4. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicants return to Papua New Guinea now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that they would be unable to subsist, or be physically injured, sexually abused or killed by abusive men in Papua New Guinea, due to them being members of their respective particular social groups. In making this finding, the Tribunal has accepted the evidence of the applicant that she and her daughter cannot obtain family support through the Wantok system, due to the combined effects of the poverty of her family members, fear of witchcraft and the continuing tension caused by inter-tribal violence regarding a land dispute. For completeness, the Tribunal notes that all of the claims of the applicants are properly absorbed into their membership of their respective particular social groups. The Tribunal so finds.

   Does the real chance of persecution extend to all areas of Papua New Guinea?

5. Having carefully considered the above pertinent evidence submitted by the applicants, and the relevant country information (from DFAT and open sources), the Tribunal finds that the real chance of the applicants being persecuted for reasons of their membership of their particular social groups extends to the whole of Papua New Guinea, in conformity with s.5J(1)(c) of the Act.

   Are there effective protection measures?

6. The Tribunal has duly considered whether ‘effective protection measures’ as defined in s.5LA of the Act are available to the applicants. Having regard to the DFAT country information concerning the effectiveness of the Royal Papua New Guinea Constabulary (RPNGC), in particular their reticence to take appropriate action regarding gender based violence, the Tribunal is not satisfied that the applicants can access the protection of the Papua New Guinean State, nor that there is a reasonably effective police force to assist them, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution they face as members of their respective particular social groups. Additionally, the Tribunal accepts the evidence of the applicant that she previously sought the assistance of the RPNGC without success, which buttresses the aforementioned conclusions.

7. Accordingly, the Tribunal finds that effective protection measures are not available to the applicants for the purposes of s.5J(2) of the Act.

   Other factors concerning the persecution

8. Having regard to all of the evidence, the Tribunal finds that the persecution which the applicants fear, in respect of them being members of their respective particular social groups (‘single mothers without family protection in Papua New Guinea’ and ‘female minors without family protection in Papua New Guinea’), involves ‘serious harm’ in accordance with s.5J(4)(b) of the Act given it involves a threat to their life or significant physical harassment or ill-treatment. Further, the applicants’ membership of their respective particular social groups are the essential and significant reasons for the persecution which they fear, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicants fear involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.

   Well founded fear of persecution

9. Having considered all of the above circumstances, both individually and cumulatively, the Tribunal finds that there is a real chance, in the reasonably foreseeable future, the applicants would be persecuted for reason of their respective membership of a particular social group. Their fear of persecution is well-founded as required by s.5J of the Act and therefore they are both refugees within the meaning of s.5H. Having reached the aforementioned conclusions, the Tribunal finds it is unnecessary to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Papua New Guinea, there is a real risk that they will suffer significant harm.

   CONCLUSION

10. For the reasons outlined above, the Tribunal is satisfied that both applicants are persons in respect of whom Australia has protection obligations and they each satisfy the criterion set out in s.36(2)(a) of the Act.

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    K. Chapman
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …